MAHENDER SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal emerges from the judgment, dated April 17, 1972, of Mr. Devi Singh, Sessions Judge, 'Ganganagar, convicting accused Mahender Singh and Vichiter Singh of the offence under Section 304/34 I.P.C. and sentencing each of them to undergo rigorous imprisonment for five years.

(2.) SUCCINCT facts of this case are that Shiv Karan and deceased Udram were brothers. They had a command and, situate at the outskirts of village Bhuranpura, in Chak No. 13, RWD Shiv Karan had sold his land to Santa Singh, father of accused Mahender Singh and Vichiter Singh. Udram had filed a pre -emption suit in respect of this land in the court of Civil Judge, Hanumangarh. An application under Section 145, Cr. P.C. was also made by, Udram, to the court of sub -Divisional Magistrate, Hanumangarh On account of the litigation between the parties, the two accused bare enmity against, Udram deceased. It is alleged that a few days prior to the occurrence Mahendersingh had told Udram that he would some day retaliate On October 23, 1971, at 2 p.m. Mahender Singh and Vichiter Singh came out of their 'Dhani. They reached at Killa Nos. 7 and 8 marked in the site plane Ex -P 11 Udram at that time was ploughing his land Mahander; Singh was armed, with a 'Gandasi' and Vichiter Singh with a lathi. Mahender Singh inflicted, a 'Gandasi' blow as a result thereof he fell down. Thereafter both Mahender Singh and Vichiter Singh inflicted several blows with the weapons with which they were equipped. The incident was alleged to have been seen by PW 4 Shri Ram and PW 5 Ram Jas from point No. 3 given in the site plan Ex -P. 11. Gome Khan and one Gopi, who was the owner of an adjacent, field, had also arrived there. On their challenge both the accused took to their heels. The witnesses found Udram unconscious and bleeding on account of multiple injuries. He was taken on a camel back to village Bauranpura and from there he was shifted to Rawatsar Hospital for treatment in a jeep -car. Because of his serious condition he was subsequently removed to Ganganagar Hospital Soon after Shri Ram went back to his village Bhuranpura. He then contacted Nand Ram, PW 3, Sarpanch Chahuwali and than bath Shri Ram and Nand Ram went to police station, Tibbi and lodged first information report Ex -P 1 at 2,10 a.m. on October 24, 1971. Nasir Ahmed, PW 10, incharge of the police station, Tibbi, registered a case under Sections 307 and 447, I.P.C. and took over investigation. Subsequently Udram died' in Ganganagar Hospital on October, 24, 1971, at 3.30 p.m. The police then altered the offence from Section 307, 302, I.P.C. Postmortem examination of the dead body of Udram was conducted by Dr. A.R. Das, PW 12, Medical Jurist, Ganganagar Hospital. He found the following injuries on the person of the deceased:

(3.) I now take up the first point raised on behalf of the appellants. A pesusal of the first information report Ex -P 1 shows that it was received by the police station, Tibbi. On October 24, 1971, at 2.10 a.m. The Munsiff -Magistrate, Hanumangarh, ordered for its registration on October 26, 1971. Learned Deputy Government Advocate submits that from the statement of Nasir Ahmed, ASI (PW 10) it is apparent that a copy of Ex P 1 had been sent to the Munsiff -Magistrate, that very day. If the copy of the first information report had been sent to the Munsiff -Magistrate, Hanumangarh, on October 24, 1971, there is no reason why the Munsiff -Magistrate should make endorsement for its registration on October 26, 1971. October 24, 1971, was Sunday. October 25, 1971 was a working day. The first information report could have at the latest been sent to the Munsiff Magistrate on October 25, 1971, but that was not done. Section 157(1), Cr. P.C. reads: